Nope. I am in favor of a new amendment that that explicitly and unambiguously prohibits any civil authority, including advisory authority over religion, the duty we owe to our creator, things purely sacred, the things that are God’s, prayer, fasting, thanksgiving, trust in God, the issue of whether we are under God, things that pertain to salvation, the prerogatives of Jehovah or the Kingdom of Christ.

And what about non-Christians? What about non-theist religious people, like some Buddhists? Would they be able to benefit from this amendment as well?

Yep. But, I don’t know how to put it the way the Buddhists would. All religion will be exempt from the cognizance of the civil authorities, except when it manifestly threatens the existence of the state or infringes upon essential rights.

There will be no Chaplains to Congress, no “In God We Trust” on our coins and no “under God” in the pledge. Any thing that even hints of civil authority over religion will be prohibited. Also, the amendment will allow laws to punish civil officers who trespass on the jurisdiction of God. Blatant egregious violations, such as that committed by Roy Moore, would be punished with prison time. God will have total and absolute power over religion. The government will have none…zilch…nada.

The First U. S. Congress established two religions, dude. But they weren’t national religions.

Oh yes? And which were those? And how, precisely, do you claim that they were “established”?

The two religions were established under the 1789 joint resolution of the House and Senate that authorized the election of a chaplain for the House and another for the Senate. James Madison said they violated his understanding of the establishment clause, in his Detached Memoranda. The Federalists made the same claim in 1811, during a debate in House over whether to override President Madison’s veto of a law that established rules governing the dismissal and appointment of a church’s minister.

I wish the First Amendment clearly and unambiguously meant what Madison said it did. But it doesn’t.

I know that, dude. But that’s the way its going to interpreted if the “Christian Nation” crowd gets another justice on the Supreme Court.

Ah. Yes, in that I am inclined to agree with you, although I hope that I am being too pessimistic. But in that case the Justices would be wilfully misinterpreting the Constitution.

FredFlash - 30 October 2007 06:28 PM

The letter to the Danbury Baptists wasn’t adopted by the people to be their constitution of national government.

Well, yes and no. The letter is a clear description of how to interpret that part of the Constitution, written by one of the Founding Fathers.

The Constitution is intentionally a vague and incomplete document. It doesn’t tell you precisely how it is to be read. One of the way that any historiographer makes sense of this sort of document is to look at what the people at the time said about it, and what they believed it meant. In particular, they look to the framers, and to the people who were particularly influential in the thought of the time.

So in a sense, yes, the letter to the Danbury Baptists was (indirectly) adopted by the people to be their Constitution. And this is largely how it’s been interpreted by Supreme Courts for the last two hundred years. E.g., Reynolds vs. United States (1879): Jefferson’s observations “may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment.”

Well, yes and no. The letter is a clear description of how to interpret that part of the Constitution, written by one of the Founding Fathers.

So what, dude. The Constitution wasn’t written to be interpreted according to letters written after its adoption by a dude who didn’t even participate, officially, in its adoption

dougsmith - 30 October 2007 07:00 PM

The Constitution is intentionally a vague and incomplete document. It doesn’t tell you precisely how it is to be read. One of the way that any historiographer makes sense of this sort of document is to look at what the people at the time said about it, and what they believed it meant.

Show me any evidence you have the men who actually wrote the Constitution, and those who voted to give it legal effect, intended or understood that it would be construed according to what the people at the time said about it, and what they believed it meant.

Have you ever considered the possibility that there were, at the time the Constitution was adopted, well established objective common law rules of construction?

The two religions were established under the 1789 joint resolution of the House and Senate that authorized the election of a chaplain for the House and another for the Senate. James Madison said they violated his understanding of the establishment clause, in his Detached Memoranda. The Federalists made the same claim in 1811, during a debate in House over whether to override President Madison’s veto of a law that established rules governing the dismissal and appointment of a church’s minister.

Well, I have to say that I agree with Madison. It shouldn’t have been done. However there was no violation of the First Amendment in doing so: the first chaplains were hired in April and May 1789. The First Amendment wasn’t approved until September of that year.

That said, hiring a chaplain isn’t quite the same thing as establishing a religion. For starters, there was no express claim that the position of chaplain had to be occupied by a member of any particular religion, and chaplains have come from a number of different sects, even Unitarians and Universalists in the House of Representatives. (However, the claim that chaplains aren’t sectarian would be more convincing if Congress would elect more explicitly non-Christian chaplains as well).

So then, Fred, will priests, pastor, ministers and imams have the right of authority over their congregations? Will they have the right to lead their congregations to involve themselves in actions of civil authority such as the one that you are suggesting? How can separation of religion from civil authority coincide with a civilly authorized provision for religion?

Show me any evidence you have the men who actually wrote the Constitution, and those who voted to give it legal effect, intended or understood that it would be construed according to what the people at the time said about it, and what they believed it meant.

When we interpret the meaning of any text we must go, at least in part, by the intentions of the people who wrote that text. Now, I am no strict constructionist, so I do not claim that we must adhere solely to vague reconstructions of essentially contradictory intentions. But the notion that we can or should ignore that data is not credible. And the framers knew it, that’s why they wrote so clearly to explain what they had meant. (Although Jefferson was not present at the writing of the Constitution, there is no doubt that he was very influential in what came out the other end).

FredFlash - 30 October 2007 07:14 PM

Have you ever considered the possibility that there were, at the time the Constitution was adopted, well established objective common law rules of construction?

You will have to explain what you mean. The Constitution was a compromise text, agreed to largely in secret. It was not constructed by any “common law rules”, but by rough horsetrading among people with differing agendas. That said, most people believe that James Madison was the most influential framer. And he had quite clear notions about the separation of church and state, as we have already seen.

The notion that the interpretation of the Constitution should be guided primarily by what the writers intended seems a ridiculous attempt to avoid hard decisions and retreat into a mythical Golden Age when America was a good, white, Christian nation. The reality of our times change and so, cautiously and slowly, should our laws and practices. This doesn’t just mean re-writing the Constitution but re-interpreting it in reasonable ways even though these may differ from the founders’ own values. Doug is right to point out that the reliance on the authority of the founders for the notion that we live in an intentionally Christian nation is mistaken, but ultimately I don’t think what the founders’ believed is the most improtant guide to how we implement the principles of the Constitution. It is not an infallible holy text and should not be treated as such. Respected, yes, but understood as a scaffold on which a facade, which is changed and updated as necessary, is built.

It strikes me as an obvious illustration of the hypocrisy and ulterior motives of the constructionists, those who claim to view the Constitution as a sacred document that should mean what the founders’ intended it to mean, that the same people tend to support amending the document to protect the flag or heterosexual marriage. And they are the same people who refuse to acknowledge the obvious meaning of the language of the 2nd amendment (the provision for a state-regulated militia) and engage in interpretive contortions to support their oppositioon to regulation of guns. They are simply interested in implementing their world view however possible, and theysupport preserving the document or altering it as suits their agenda.

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So in a sense, yes, the letter to the Danbury Baptists was (indirectly) adopted by the people to be their Constitution. And this is largely how it’s been interpreted by Supreme Courts for the last two hundred years. E.g., Reynolds vs. United States (1879): Jefferson’s observations “may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment.”

The Reynolds Court, in my view, used Jefferson’s letter only to “confirm” what it had already derived from documents (Madison’s Memorial and Remonstrance and the Virginia Religion Bill of 1786) written “before” the First Amendment was written. The Court admitted that Jefferson’s letter was not a primary source of law when it said it “almost” authoratative.

The Reynolds Court wrote a really crappy opinion, in my view. It made the right ruling, from the Jeffersonian view of the Constitution, but its reasoning was incorrect.

The Court failed to point out that the Constitution granted the U. S. Government, a government created with limited authority, any jurisdiction whatsoever over religion. However, it correctly realized that the word “religion” was critical but not defined in the Constitution.

It should have been guided by Blackstone’s Third Rule of Construction which says,

3. AS to the fubject matter, words are always to be underftood as having a regard thereto; for that is always fuppofed to be in the eye of the legiflator, and all his expreffions directed to that end. Thus, when a law of our Edward III. forbids all ecclefiaftical perfons to purchafe provifions at Rome, it might feem to prohibit the buying of grain and other victual; but when we confider that the ftatute was made to reprefs the ufurpations of the papal fee, and that the nominations to vacant benefices by the pope were called provifions, we fhall fee that the reftraint is intended to be laid upon fuch provifions only.

Instead, the court turned to the “history of the times in the midst of which the provision was adopted” and found Madison’s Memorial and Remonstrance and the Virginia Religion Bill of 1786. Both of those documents would qualify as “subject matter” under Blackstone’s Third Rule. However, only the M and R provides the meaning of the word “religion.”

(My view is that the Court should have relied upon the writings on the subject of religious liberty, which actually defined the word “religion”, that were closest in time to the writing of the First Amendment. In late 1788, the Virgina Ratifying Convention recommended an amendment to the Constitution which defined religion as “the duty which we owe to our Creator.” This writing should have been used by the Court.)

The Reynolds Court adopted, or at least signaled its approval of, the meaning James Madison gave to the word “religion” in his M and R. At this point the Court should have substituted Madison’s definition of religion for the word “religion” in the First Amendment and arrived at the following construction:

“Congress shall make no law respecting an establishment of a duty which we owe to our Creator, or prohibiting the free exercise of a duty which we owe to our Creator.”

At his point, the Court would have faced the problem of determining whether a Mormon’s duty to take more than one wife was an exercise of a “duty owed to the Creator.” The Court, in my view at least, should have reasoned that it was not, because taking more than one wife involves more than a man and his God. It involves a Man, his God, his first wife and his second wife.

(A duty to God is one that is owed only to God only and has no effect on other men. A duty that involves other men is what Jefferson termed a “social duty.”)

What the Court actually did was determine that bigamy was not a “free exercise religion” under the First Amendment because, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” The Court ruled correctly, assuming that Madison’s view of the First Amendment is correct, that polygamy was not “religion” under the First Amendment, However, its reasoning was incorrect. The meaning of the Constitution is not to gathered from history. It is to gathered from the words of the Constitution and the well established common law rules of construction.

There are no rules to determine what “historical events” or “historical interpretations” should be used to determine the meaning of the Constitution. All it does is provide a playground for judicial activism. A good example is Justice Rehnquist’s abuse of history to justify his interpretation of the establishment clause to do nothing more than prohibit a national religion.

The two religions were established under the 1789 joint resolution of the House and Senate that authorized the election of a chaplain for the House and another for the Senate. James Madison said they violated his understanding of the establishment clause, in his Detached Memoranda. The Federalists made the same claim in 1811, during a debate in House over whether to override President Madison’s veto of a law that established rules governing the dismissal and appointment of a church’s minister.

Well, I have to say that I agree with Madison. It shouldn’t have been done. However there was no violation of the First Amendment in doing so: the first chaplains were hired in April and May 1789. The First Amendment wasn’t approved until September of that year.

You got a point there, dude. However, some would say that Congress had no power over religion in the first place. Thus, no power over the religion of the members of Congress who did not share the religious opinions of the Chaplains. Also. even after the First Amendment was adopted Congress continued to elect Chaplains.

Would you be shocked if I suggested that the Chaplains to Congress did not actually open each daily session of the House and Senate with prayer during the first 50 years of the Republic.

That said, hiring a chaplain isn’t quite the same thing as establishing a religion. For starters, there was no express claim that the position of chaplain had to be occupied by a member of any particular religion

True. However it appears that the Chaplains conducted worship services according to “The tenets of the chaplains elected [by the majority]” and “shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority.” Madison is not describing an opening prayer. He is describing what the Anglicans called “prayers”, which were a formal worship service governed by the Book of Common Prayer.

“Prayers” lasted about a half hour. I believe the Chaplains conducted Anglican style “prayers” a few times a session for those who wanted to get up a half hour early. Apparently, there were not many.

Madison said that attendance at the “daily devotions conducted by these legal Ecclesiastics” was “scanty” because they had become a “tiresome formality?”

If Madison was taking about an opening prayer, attendance would not have been “scant.” All the members would have been present. Nor would some member have been “shut out.”

So then, Fred, will priests, pastor, ministers and imams have the right of authority over their congregations?

Hell yes! Assuming of course, that the members of their religious organizations believe they were ordained by God and choose to submit to their religious authority. Each individual will determine if a cleric was ordained by God to be one of his ministers on earth.
The government will have no say whatsoever.

Will they have the right to lead their congregations to involve themselves in actions of civil authority

Huh? A cleric, as such, does not have any civil authority, dude. He can’t make general civil laws governing murder, contracts, marriage, traffic or other civil matters.

Show me any evidence you have the men who actually wrote the Constitution, and those who voted to give it legal effect, intended or understood that it would be construed according to what the people at the time said about it, and what they believed it meant.

When we interpret the meaning of any text we must go, at least in part, by the intentions of the people who wrote that text.

I know, dude. In the case of legal instrument, there were well established common law rules of construction that were to be used to ascertain the will of the lawmaker,

Now, I am no strict constructionist, so I do not claim that we must adhere solely to vague reconstructions of essentially contradictory intentions. But the notion that we can or should ignore that data is not credible. And the framers knew it, that’s why they wrote so clearly to explain what they had meant. (Although Jefferson was not present at the writing of the Constitution, there is no doubt that he was very influential in what came out the other end).

Dude, there were well established rules of construction at the time. Most of the men who wrote the Constitution were lawyers. They knew the rules and wrote the Constitution knowing that the rules would determine what their words meant.

FredFlash - 30 October 2007 07:14 PM

Have you ever considered the possibility that there were, at the time the Constitution was adopted, well established objective common law rules of construction?

You will have to explain what you mean.

Are you familiar with Joseph Story’s “Commentaries on the Constitution?”

It was not constructed by any “common law rules”

Here is James Madison, during the Convention that framed the Constitution, referring to the “rules of construction.”

I’ve just been catching up on this thread. I hope this is not taken the wrong way, but based upon the comments presented by “Fred”, I am compelled to ask:

How old are you Fred, or should I say “Dude”?

You don’t have to be specific. I’m just trying to determine if you have graduated from High School yet. Thanks.

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